ON PETITION EOR REHEARING
Blume, Justice.Counsel for defendant have filed petition for rehearing herein, alleging in general that we erred in the rule of law applied in the case. Other exceptions taken we shall mention in.the course of the opinion. It is apparent, judging from the arguments of counsel, that we have not made our position clear in many respects, and have, perhaps, not sufficiently covered the grounds taken by defendant. On account of the importance of the principles involved in' this case, and in justice to the learned and able counsel for defendant, we shall at greater length than we would ordinarily do, but as briefly as possible go over the main contentions herein made. Much of what we shall say would have been said in the original opinion, but for the fact that we thought we had covered the subject sufficiently and did not desire to make the opinion too long.
Counsel think that we have not considered the authorities cited by them, and now particularly again refer to Keefe v. Ry. Co., 92 Ia. 182, 60 N. W. 503; Louisville Ry. Co. v. Jolly (Ky.) 90 S. W. 797; Vezacchero v. Rhode Island Co., 26 R. I. 392, 59 Atl. 105; Southern Ry. Co. v. Gray, 241 U. S. 333; Cohen v. Ry. Co., 14 Nev. 376, and one other case hereinafter mentioned. We had read the *83authorities cited. Without attempting hére to analyze the above eases separately, we may say in general that they fairly support the doctrine that ordinarily an engineer do'es not need, to put his train under control, and that he is entitled to indulge in the presumption of a clear track. We have no fault to find with that doctrine and gave it our approval in the original opinion. The Vezacchero case lays down the rule that only sufficient time need be given for the persons on the track to get out of the w;ay, and counsel contends that this rule should be applied here. We also gave that rule our approval as applied in the ordinary case where section men are on the track. The Jolly case presents many facts very similar to those in the case at bar, and counsel in their first argument herein contended that the ease should control here. But there was absent in that ease the one vital factor which controls this case; namely, ■the warning given of the peril of deceased, and that factor was not present in any of the cases cited by counsel for defendant, and we cannot, therefore, see how those cases can be said in any way to be applicable to, or be decisive of, the case at bar.
We stated the rule of law in this case to be that the engineer among other things, when he received the warning, should have put his train under reasonable control, leaving the fact as to whether or not he had done so, for the jury to determine. We cited in support of our holding the cases of R. Co. v. Evans, 170 Ky. 536, 186 S. W. 173, and Ry. Co. v. Jones’ Admr’s., 171 Ky. 11, 186 S. W. 897. Counsel for defendant contend that these cases do not apply, pointing to the fact that in both of them the engineer completely ignored the warning there given and that in one of them the person injured was not negligent. We do not think that sufficient to distinguish thé cases. Contributory negligence on the part of the injured person can neither establish the negligence of á defendant, nor freedom therefrom. Further, to partially ignore a warning may be just as fatal and result in just as great detriment' as to entirely ignore it; hence the principle cannot be shaken by that argument.
*84We have found no other eases than-those above cited exactly in point. We think, however, that they find some support in cases arising out of analagous situations, namely, where the injured person is killed-or injured at a place much frequented and where his presence, therefore, was to be anticipated. Both classes of cases are based on knowledge of danger. (See cases collated in 11 L. R. A. (N. S.) 352.) In the case of Missouri Pac. Ry. Co. v. Hansen, 48 Nebr. 232, 66 N. W. 1105, cited by counsel for defendant, the deceased was a trespasser injured while walking on the track in a region outside of the city limits, not shown to have been unusually heavily settled. The court held that a speed of 25 miles could not be held to be negligent. Wé think it is apparent that much greater knowledge of the presence on the track of the deceased in the ease at bar was conveyed to defendant’s engineer. In addition thereto, the deceased in this case was not a trespasser. In the case of Haley v. Ry. Co., 197 Mo. 15, 93 S. W. 1120, 114 A. S. R. 743, the court announced the following rule :
"It is the duty of a railroad company running its train through a street of a populous city to use ordinary care to regulate the speed of the train so as not to injure anyone, and failure to use such care is negligence at common law. ”
In Northern Alabama Ry. Co. v. Guttery, 189 Ala. 604, 66 So. 580, the syllabus on this question is as follows:
"Where trainmen know that a track at a certain point is commonly used by pedestrians, it is their duty to keep their train in control at that place so that they may avoid injuring pedestrians after discovering them, upon the track.”
In the case of Cincinnati etc. Ry. Co. v. Carter, 180 Ky. 765, 203 S. W. 740, the court seems to lay down, the rule that in all cases where there is a lookout duty due to . any person, the duty of the railroad company is as follows:
■ "In such cases, the company owes to persons thus using its tracks the duty to give warning of the approach of the train, to keep a lookout, and to operate its train at such a *85speed as may enable the engineer to stop it before injury has been inflicted. ”
Similar language was used in Illinois Central R. R. Co. v. Murphy, 123 Ky. 787, 97 S. W. 729, 11 L. R. A. (N. S.) 352, and in Blackburn v. Ry. & R. N. Co. (La.) 80 So. 708. (See also Georgia R. Co. v. Cramer, 106 Ga. 206, 31 S. E. 759; Shaw v. R. Co., 127 Ga. 8, 55 S. E. 960.)
So we think that the rule applied in the case at bar is amply sustained by both reason as well as authority. ¥e believe, however, that the exception taken by counsel for defendant to the phraseology, such as used in the Jones case, that the control must be such as to be able to stop the train if necessity appears, or, as expressed by some of the other eases above cited, that the train must be able to be stopped before injury occurs, is well taken. While we do hot know that the courts meant to so hold, the language may be construed to mean that that duty exists as a matter of law. We think that the only requirement that should be made as a matter of law of an engineer in a case like that at bar is to keep a look-out, give warning, and put the train under such control as a reasonably prudent person would have done under like circumstances, leaving it to the jury to say, unless the case warrants the court to do otherwise, as to whether or not the rate of speed which would make it impossible to prevent injury, after actually and definitely discovering the dangerous position of the persons in peril, was in fact negligent. (See Illinois Central R. R. Co. v. Murphy, supra; Shaw v. R. Co., supra; Georgia R. Co. v. Cramer, supra; Tober v. R. Co., 210 Mich. 129, 177 N. W. 385.) We applied the rule as so construed in the case at bar.
Counsel fear that this rule would seriously interfere with railroad operation. But we do not think so. We cannot deviate from the wholesome doctrine that the law has a high regard for human life, and must apply a rule of law that will effectuate that doctrine. The rule announced by us does not apply unless the engineer has reason to believe that persons on the track ahead of him are in peril; in all other eases he is entitled to indulge in the presumption of *86a clear track, and does not need to put his train under control further than to give men, whom he has reason to believe to be ahead of him, sufficient time to get out of his way. We do not think that such a doctrine puts too great a. burden upon railroad operation.
Counsel claim that under the holding of this court the engineer was required to anticipate the negligence of Sweeney as well as unusual and extraordinary conditions. But this is a very inexact deduction. We hold that, in order to make defendant responsible, it should only be able to anticipate some injury from its acts; that the jury were justified in finding that with the conditions actually confronting the engineer, some injury might reasonably be anticipated by him, unless he reduced the speed so that it would not be negligent; that as to whether he did so was a question for the jury; that since the jury found that he did not, but was negligent, they were further justified in holding that the injuries in question were within the reasonable field of anticipation, or, as expressed generally, that these injuries were the natural and proximate result of the negligence, for which the defendant was liable although occurring under unusual circumstances. Let us briefly, even at the risk of repeating some of the things stated in the original opinion, make our position clearer. In the first place, the situation as it was at the time when the engineer received the note “motor car just ahead,” could clearly be found by the jury to have been fraught with peril and danger.. The fact that the note could be construed to mean' that the motor car was just ahead in the cut, the obstruction to. vision, the noise of the motor car making hearing difficult, the train running out of time, the possible, perhaps, probable, sense of security of the men on the motor car ahead and other circumstances indicated in the original opinion, warranted them in doing so. And what would seem very persuasive, the station agent of the defendant thought so,,, and demonstrated that by the very act of handing the note to the engineer; the latter thought so, and showed that fact by, spudding the whistle and reducirig the speed. It is clear, *87therefore, that, in face of all this, we could not be asked to hold the fact to be otherwise. Counsel, accordingly, would probably agree with us, that if the engineer had paid no attention whatever to the danger warning and had entirely ignored it, that then he should have reasonably anti-eipated'some injury, and that then his conduct would rightly have been considered reckless, and negligent, without regard to the conduct of the deceased. It is, therefore, reasonable to hold that he should, under the circumstances, put his train under control. This in fact he did, to the extent of reducing the speed to about 20 miles an hour, and the only point remaining is whether that was sufficient as a matter of law, or whether the jury had a right to pass upon that question. As we stated before, to ignore a duty partially may be just as fatal, just as deadly as to ignore it entirely. Counsel think that no danger whatever was left after such reduction of speed, and the circumstances to the contrary are not exceedingly strong. But we think that reasonable minds might come to a different conclusion on that question. And the ease was, therefore, properly submitted to the jury.
When, accordingly, the jury found; as they evidently did, that to run the train at the rate of 20 miles an hour had a tendency and was likely to result in some kind of injury, and that this constituted negligence, then thh fact that the injury happened under peculiar circumstances, such as could not have been reasonably anticipated, would not necessarily make any difference. (See cases cited in the original opinion.) Counsel attempt to distinguish some of the cited cases from the case at bar. The facts in those cases, it is true, are different from the facts in the case at bar, but the rule' therein stated is applicable nevertheless, because based on or consonant with the principle that the law will not permit a defendant to excuse himself from the natural and proximate consequences of his wrong. Where negligence has once been found- to exist, the defendant is liable for all the natural consequences proximately resulting therefrom without the intervention of an efficient intervening cause, although the injuries actually resulting could not have *88been foreseen. (Galveston etc. Ry. Co. v. Cook, (Tex. Civ. App.) 214 S. W. 539; San Antonio & A. P. Ry. Co. v. Behne (Tex. Civ. App.) 198 S. W. 680; Christianson v. Ry. Co., 67 Minn. 94, 69 N. W. 640; Ry. Co. v. Parry, 67 Kans. 515, 73 Pac. 105; Mesa City v. Lesueur (Ariz.) 190 Pac. 576; Salem v. R. R. Co., 75 Or. 200, 146 Pac. 819; The Pullman Palace Car Co. v. Laak, 143 Ill. 242; Hellan v. Supply Laundry Co., 94 Wash. 683, 163 Pac. 9; Stevens v. Dudley, 56 Vt. 158; Hill v. Winsor, 118 Mass. 251.) The consequences of negligence are almost invariably surprises. (Clifford v. Railroad, 9 Colo. 338, 12 Pac. 219; Colorado Mfg. & Inv. Co. v. Gisconni, 55 Colo. 540, 136 Pac. 1039. Stevens v. Dudley, supra.) A contrary doctrine would give every wrong doer a chance to escape by showing that the consequences could not reasonably have been anticipated, and would often lead to most unjust results, but under the law as laid down by the courts, so long as the results are natural .and proximate, or, as otherwise expressed, not so unnatural and remote as to be beyond the reasonable field of anticipation, the defendant guilty of negligence is held responsible. This question is generally, as we held it to be in this ease, for the jury to decide. With the question of negligence of the party injured we shall deal separately.
Counsel for defendant -have conceded from the -beginning — a fact which we fully understood and which, in justice to them, we should, probably, have distinctly stated— that if defendant was guilty of any negligence proximately contributing to the injury, then in view of the employer’s liability act, a verdict for plaintiff was properly found. But, in addition to the contention that defendant was not negligent; of which we have already disposed, they further vigorously insist that the acts of deceased became the sole proximate, the sole producing cause, because the decedent was reckless and negligent and that such negligence was not to be anticipated by defendant. We have, perhaps, not heretofore sufficiently treated this point of view. There are at least two conclusive answers to this contention:— First, in determining as to whether or not the acts of de*89cedent .constituted the sole proximate cause of the injury, the acts of both parties must be considered; it must appear not only that decedent was negligent, hut also that the defendant was not guilty of negligence contributing to the injury. And we have already stated that the jury were justified in finding the defendant negligent. As to whether this negligence contributed to the injury was also for them to decide. Hence the decedent’s negligence is not sufficient to establish counsel’s contention. We do not suppose that counsel would dispute the proposition that the mere fact that decedent was negligent does not necessarily prove, in a case like this, that defendant was not negligent. Negligence consists of a violation of duty owing by one to another. Whether or not defendant violated such duty can evidently not he established in a case like this by showing merely that decedent was also guilty of a violation of duty. This seems to be a truism. Further, it is true that defendant is not required to anticipate the negligence of the injured party, and he is not held responsible therefor, even under the employers liability act. Because of this fact, recovery is barred in a common law action whenever such negligence commonly called contributory, is established. But if we call it the sole proximate cause, when shown, then we can conceive of no case where, when such negligence of the injured party is established, a recovery could be had under the employers liability act, and the law would be but- a phantom and a delusion. Hence the contention must, of course, be unsound. To say that a defendant is not required to anticipate another’s negligence is, we think, a different proposition from saying that a man is responsible for the natural and proximate consequences of his wrong, as he is held to be under the employers liability act. But whether it is or not, or whether the latter proposition should in a ease like this be considered a modification of the former, is to no purpose. The very reason of the act was to get away from the common law rule referred to, that contributory negligence, or, if it pleases, the inability to anticipate the injured'party’s negligence, bars recovery, and intends *90to make a defendant responsible for the natural and proximate consequences of his wrong, and no further, though these consequences could not have happened except only in combination with or because of the negligence of the injured party. Second: — We cannot agree with counsel, as we indicated in the original opinion, as to the nature of the acts of deceased in connection with the motor car. The moment no doubt was tense, as is shown by the circumstances, including the exclamation of decedent, and the fact that the Mexicans jumped instantly. Decedent no doubt was impelled by emotions to save the motor car and himself from being discharged; but a train moving at 20 miles an hour compelled instant action or meant, perhaps, death; that he, under the excitement of the moment, should pull the lever of the motor car the wrong way, is not entirely surprising, and cannot be considered so unusual as to be beyond the reasonable field of anticipation, even though, as counsel say, section men do not usually “lose their heads.” We do not think that we should judge too harshly of conduct under such circumstances, and do not believe it to be consonant with humane feelings to declare such conduct, as a matter of law, reckless and the sole proximate cause of the injury. (See Dickinson v. Granberry (Okl.) 174 Pac. 776, where three Mexicans escaped but the section foreman was killed.) We think it was for the jury to say whether this conduct of deceased constituted contributory negligence, or not, and to what extent, if any, it contributed to,, or brought about the injury, and if they found that he then acted with ordinary care, then, it would seem,- they could have found for plaintiff even under the rule of law contended for by defendant, namely, under the rule that time enough should have been given to deceased to get off the track while in the exercise of ordinary care. -The preceding negligence, if any, of being there at all on account of not heeding the warning not to go, should not, we think, be determinative of that point, for if i.t were, the rule itself) or for that matter, any rule relating to the care of defendant whatever, would be of no value to a person situated as was the de*91ceased, and this is the view which the lower court doubtless took in view of instruction No. 14.
Counsel for defendant take exception to what we said on the subject of the non-production of the speed recorder. We do not believe, that anything we said could be construed as affecting the rule of the burden of proof. Inasmuch, however, as the point was not necessary to be decided in the case, we deem it best, in view of the fact that the point may in the future arise more directly, not to decide as to what, if any, conclusions the jury had a right to draw from the circumstances mentioned, and the original opinion is modified accordingly.
We find no reason why a rehearing should be granted and the same is accordingly denied.
Rehearing Denied.
Potter, C. J. and Kimball, J., concur.